US Supreme Court declines to reconsider dancing baby case

The US Supreme Court has declined to review the infamous dancing baby case which asked to what extent ‘fair use’ must be considered when rights owners issue takedown notices against online content. Neither side in the case – plaintiff Stephanie Lenz and defendant Universal Music Publishing – was happy with the most recent ruling in the Ninth Circuit Court Of Appeals in 2015.

As previously reported, this dispute began way back in 2007 when Lenz posted a video onto YouTube of her child dancing to the Prince track ‘Let’s Go Crazy’. Universal Music Publishing, then repping the Prince songs repertoire, had Lenz’s video removed using the takedown provisions in America’s Digital Millennium Copyright Act. But Lenz argued that the short video was ‘fair use’ under US law and then – with support from the Electronic Frontier Foundation – sued Universal for abuse of the DMCA.

The lawsuit posed the question of whether or not a rights owner issuing a DMCA takedown was required to first consider whether any video using, without licence, music it controlled was, in fact, covered by the ‘fair use’ principle under US copyright law. If the video did constitute ‘fair use’, no licence would be required, so no takedown should be issued.

The litigation spent years going through the motions, before the Ninth Circuit court ruled in 2015. It said that yes, rights owners must indeed consider fair use rules before issuing a takedown notice. So, success for Lenz. Except the appeal judges then said that this consideration need not be too rigorous, and providing that the label genuinely didn’t think fair use applied, well, that was alright then. So, success for Universal, sort of.

Though the major was less happy on the appeal court’s judgement that if Lenz pushed for damages over this whole matter, she didn’t first have to prove “actual monetary loss”, something the music publisher wanted judges to insist on in order to reduce the chances of it ever having to pay the dancing baby’s mother any money.

Both sides subsequently referred the matter to the Supreme Court. Judges there quickly knocked back Universal’s appeal on the damages question, but said they were considering a review of the Ninth Circuit’s judgement regarding the impact of fair use on the DMCA takedown procedure. To that end, last October the Supreme Court asked the Solicitor General in the US Department Of Justice for his opinion on fair use and takedowns.

Yesterday, however, judges at the top court announced that they would not consider the case after all, meaning that the Ninth Circuit judgement stands. Which in turn means that American rights owners should consider fair use before issuing a takedown, though that consideration doesn’t need to be especially rigorous, and providing the takedown is issued in ‘good faith’, all is fine. Which isn’t necessarily much use to the fair user.

The EFF said yesterday that it was disappointed that the Supreme Court wouldn’t consider strengthening the fair use obligation on takedown issuers, though that it was happy the basic principle set by the Ninth Circuit – that fair use must be considered as part of the takedown process – was upheld.

The organisation’s Legal Director, Corynne McSherry, said: “Sadly, the Ninth Circuit’s ruling in this case did not go far enough to ensure that copyright holders would be held accountable if they force content to be taken down based on unreasonable charges of infringement, and we had hoped the [Supreme Court] would remedy that. However, the strong precedent that a copyright holder must consider fair use before sending DMCA takedown notices stands”.

It remains to be seen in Lenz now returns to court with the Ninth Circuit judgement in hand to try and prove wrong doing on Universal’s part back in 2007.